Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Thursday, May 10, 2012

The Charter & Freedom of Expression on Canadian University Campuses - Stay Tuned

The Alberta Court of Appeal just
released a very important decision yesterday about academic freedom, universities and
freedom of expression that appears very likely destined to find its way to the
Supreme Court of Canada. The case is Pridgen v. U. of Calgary 2012 ABCA 139.

It involved a widely reported incident
in which students were disciplined for making very unflattering comments on
Facebook about a particular lecturer. There were severe problems in the procedure
used to discipline the students. The Alta. Court of Appeal has just released a
judgment confirming that the disciplinary proceedings should be quashed on
purely administrative law principles.

However the main judgment by Paperny,
J.A. has some resounding language about the Charter. The other two judges concurred in the administrative law result quashing the disciplinary ruling – but wrote that it was not necessary to decide the
Charter issue in this instance.

So – according to Justice Paperny, the Charter generally and “freedom
of expression” in particular applies on university campuses in Canada. This might have become an issue if the
current Access Copyright board case were to have played out in the normal way
at the Board. It would have been interesting to see how AUCC would have dealt
with it. However, AUCC’s withdrawal and abandonment of its dissatisfied members
in the Copyright Board hearing may prevent this from airing.

At the recent Fordham conference in
NYC, I was on a panel dealing with fair use/fair dealing in which there was very intense interest between the interplay
of “freedom of speech” as the Americans call it and “freedom of expression” as
we call it on the one hand and copyright law on the other. The battle over the interplay is likely only just
beginning.

Here are a couple of the key
paragraphs from Justice Paperny’s reasons:

[122] One can
no longer maintain a pastoral view of university campuses as a community of scholars
removed from the rest of society. This does not mean that a university should
not be able to direct its
own affairs, certainly in academic matters, free from government interference.
It should. Respecting
Charter rights in disciplining students will not, in my view, inhibit it in the
exercise of that
institutional independence or the exercise of academic freedom. Rather, it will
promote the institution as
a place of discourse, dialogue and the free exchange of ideas; all the
hallmarks of a credible
university and the foundation of a democratic society.

VI. Conclusion[128] The
Canadian Charter of Rights and Freedoms applies to the disciplinary proceedings undertaken by
the University. The decision of the Review Committee failed to take into
account the Pridgens’
right to freedom of expression under the Charter. The decision breached the
Pridgens’ freedom of
expression and cannot be saved by section 1. Moreover, the Review Committee’s decision was
unreasonable from an administrative law perspective. The decision of the
chambers judge to quash
the Review Committee’s decision is upheld and the appeal of the University is dismissed.